Author Archives: rtushnet

Doctor’s evaluation of another doctor’s treatment isn’t commercial speech

Posted on February 16, 2017 by rtushnet

Tobinick v. Novella, No. 15-14889 (11th Cir. Feb. 15, 2017) Ultimately, despite a long battle, this is a relatively easy case about “the medical viability of a novel use for a particular drug.”  Dr. Tobinick (plaintiff, along with related entities) … Continue reading →

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Use of P’s photos to advertise D’s goods must be challenged via copyright, not Lanham Act, under Dastar

Posted on February 15, 2017 by rtushnet

Barn Light Electric Company, LLC v. Barnlight Originals, Inc., 2016 WL 7135076, No.14–cv–1955 (M.D. Fla. Sept. 28, 2016) Plaintiff BLE, owned by the Scotts, sells light fixtures to consumers over the internet. Defendant Hi–Lite, owned by the Ohais, makes light … Continue reading →

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Incontestability precludes non-listed defenses, court affirms

Posted on February 15, 2017 by rtushnet

NetJets Inc. v. IntelliJet Gp., LLC, No. 15-4230 (6th Cir. Feb. 3, 2017) NetJets is a private aviation company that specializes in “fractional ownership” of private airplanes and related endeavors. NetJets’s predecessor company developed a software program to “run [the … Continue reading →

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Spyware or spam?

Posted on February 15, 2017 by rtushnet

A new one on me: Received spammy email claiming, “Hello Rebecca, I hope you don’t mind a fellow Tushnet reaching out. I have a permit which states that WW Express did some work at [your home]. Could you tell me … Continue reading →

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This is not NORML: court of appeals finds ISU violated First Amendment with TM licensing program

Posted on February 14, 2017 by rtushnet

Gerlich v. Leath, No. 16-1518 (8th Cir. Feb. 13, 2017) Iowa State University (ISU) grants student organizations permission to use its trademarks if certain conditions are met. The ISU student chapter of the National Organization for the Reform of Marijuana … Continue reading →

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when is a law firm “national”? hub-and-spoke firm finds out

Posted on February 14, 2017 by rtushnet

Cochran Firm, P.C. v. Cochran Firm Los Angeles, LLP, 2016 WL 6023822, No. CV 12-5868 (C.D. Cal. Aug. 18, 2016) Previous 9th Circuit opinion affirming earlier unclean hands ruling discussed here. This case began with a legal partnership turned sour. … Continue reading →

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pool party: lawsuit raises survey and TM priority issues

Posted on February 14, 2017 by rtushnet

Solar Sun Rings, Inc. v. Secard Pools, 2016 WL 6138294, No. EDCV14-2417 (C.D. Cal. Jan. 20, 2016) Illustrating the principle that those who sue competitors should be sure to have their own house (or in this case, pool) in order: … Continue reading →

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Juxtaposition is transformative for RoP purposes, divided court rules

Posted on February 14, 2017 by rtushnet

Daniel v. Wayans, No. B261814 (Cal. Ct. App. Feb. 9, 2017) Pierre Daniel, an actor, worked as an extra for a day in A Haunted House 2. Marlon Wayans co-wrote, produced, and starred in the movie. Daniel sued Wayans and … Continue reading →

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Lexmark’s harm requirement shields XYZ’s comparative claims

Posted on February 13, 2017 by rtushnet

Verisign, Inc., v. XYZ.com LLC, No. 15-2526 (4th Cir. Feb. 8, 2017) Verisign sells internet domain names and operates the popular .com and .net top-level domains. In 2014, XYZ launched “.xyz,” a new top-level domain. As part of its marketing … Continue reading →

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Challenging materiality when literal falsity is conceded

Posted on February 13, 2017 by rtushnet

Smart Vent, Inc. v. USA Floodair Vents, Ltd., 193 F.Supp.3d 395 (D.N.J. 2016) Smart Vent alleged patent infringement and false advertising related to competitor Floodair’s flood vents, which it allegedly falsely claimed to be certified by various bodies.  The regulations … Continue reading →

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